research team

Research on intellectual property—whether involving multiple forms of property or, ultimately, the expression of a single model (Sophie Alma-Delettre’s dissertation)—is conducted in constant dialogue with other disciplines and concepts. In particular, situations of “discrepancy” or even “discontinuity” prompt reflection, whether it involves comparing intellectual property law with general civil law (A), articulating the neighboring rights of performing artists with labor law (B), or considering the protection of cultural property using the tools of intellectual property law (C).

A. Intellectual Property and General Law

The issue of the status of intangible assets, from the perspective of intellectual property, “permeates” all of the team’s work in a sense (see “Retention of Title: A Mechanism for Intangible Assets,” Ph.D. dissertation by Sandrine Roose-Grenier, 2008). In her work on intellectual co-ownership, Agnès Robin has particularly focused on comparing the concept of intellectual property with that of joint ownership.

Furthermore, the abundance of articles on intellectual property law published by team members attests, if further proof were needed, to ERCIM’s scientific presence in these fields of research, not to mention the participation of faculty members in numerous conferences organized by organizations as diverse as the University, the CNRS, the Senate, the Academy of Sciences, the ABF, the AFPIDA, the French National Archives, the National Foundation for Political Science, the GFFI, the IRPI, the UPC …

Specifically, two collaborative projects provided an opportunity to further develop this line of thinking regarding the relationship between specialized law and general law: the seminar on“Proprietary Models” (1) and the book*Intellectual Property and General Law*(2).

1. Seminar on “Proprietary Models”

CECOJI—the Center for Studies on International Legal Cooperation (UMR 6224)—has invited ERCIM to join a research program on the topic“Property Models in the 21st Century,” an opportunity to discuss new forms of ownership and to reflect on how property law is applied in various branches of law (intellectual property, life sciences, tangible and intangible property, and cultural law).

The idea was to bring together a group of researchers and faculty members (about thirty in all)—specializing in private law and public law—over a two-year period for seminars designed to explore various topics related to the issue of proprietary models.

The first seminar was held in Poitiers on June 2, 2005, on the topic“Exclusivism and Individual Property.”A second seminar was held in Sceaux on November 4, 2005, on the topic“The Inappropriable,” in which Nathalie Mallet-Poujol participated, discussing the status of information.

ERCIM organized a seminar in Montpellier on May 3, 2007, on the topic of“Collective Appropriation,”which was explored through the examples of land and intellectual property.

2. Book: “Intellectual Property and General Law”

ERCIM members have published a book on the topic of“Intellectual Property and General Law.” The goal was to analyze the relationship between the specific framework of intellectual property law—often referred to as “special” law—and general law, which is shaped by the powerful framework of the Civil Code. This extensive project was undertaken at a time when the issues of the fragmentation of intellectual property and the proliferation of new monopolies are constantly being raised.

An analysis of the interactions between general law and intellectual property law has been presented in light of examples that are necessarily limited but represent the first steps in what promises to be a fruitful line of inquiry. It seemed very important to fully integrate the underlying principles of intellectual property law in order to better defend its values and distinctive characteristics, especially in the age of the intangible economy. The objective of this research was therefore not to erase the specific characteristics and purposes of intellectual property law in favor of an all-powerful general law, nor to dismiss the potential offered by the latter. The richness of the legal framework governing intellectual creations (works of the mind, neighboring rights, designs, patents, trademarks, plant varieties, and semiconductor topographies) cannot be understood without reference to a “core body of law, ” especially if that core body of law enables it to provide answers to practical questions in the event that specific laws fail. A “residual” right, so to speak…

Relationships of complementarity, opposition, rivalry, incompatibility, or those between the principal and the subsidiary, or between the general and the specific—these are the connections identified between these two branches of law, with the emergence and subsequent evolution of intellectual property law serving as the guiding thread. This analysis has examined a wide range of scenarios, including joint ownership in the field of intellectual property, the abuse of intellectual property rights, and their reconciliation with competition law.

ERCIM organized a seminar in Montpellier on these issueson May 30, 2006. The book titled “Intellectual Property and Common Law”was published by PUAM in 2007.

• Reference: Intellectual Property and General Law (edited by J.-M. Bruguière, N. Mallet-Poujol, and A. Robin), PUAM, 2007.

B. The Status of Performing Artists

The status of the salaried performing artist is one of the least explored topics in literary and artistic property law and in the Labor Code’s provisions on atypical employment arrangements. Its study is part of the broader issue of salaried creative work, as it requires a better understanding of the relationship between labor law and literary and artistic property law—which are most often presented as conflicting.  This analysis is linked to the difficulties encountered by legal scholarship and case law in incorporating the compromise reached by the legislature when Law No. 85-660 of July 3, 1985, was enacted. This law grants performing artists intellectual property rights over the exploitation of their performances. It thus enshrines the subjective rights they had been demanding since the early^20th century.

This compromise consisted of taking social gains into account while legally recognizing a specific intellectual property right for performing artists, the spirit and structure of which are modeled after copyright law. It therefore seemed entirely appropriate to the members of ERCIM to take stock of how these legal regimes interact and to organize a symposium to address the many questions still raised by a legal status that has evolved from changes in literary and artistic property rights and shifts in labor law in Europe, and particularly in France. A comparison with the approaches adopted by other European Union countries and by common law countries was obviously essential. At a time marked by the crisis facing intermittent workers in the performing arts and the challenges posed by internet downloading, the issue of the status of performing artists was—and still is!—particularly pressing…

ERCIM therefore organized a symposium on the rights of performing artists, which was held at the Montpellier School of Lawon June 6 and 7, 2007. The speakers included performing artists, French and international legal experts in intellectual property and labor law, as well as representatives from copyright organizations and unions representing artists and producers.

The proceedings of the conference, titled “What Rights Do Performing Artists Have?”, were published by Dalloz in 2009 as part of the series “Themes and Commentaries: Intellectual Property from a Different Perspective.”

• Reference: What Rights Do Performing Artists Have? (edited by M. Vivant, N. Mallet-Poujol, and J.-M. Bruguière), Dalloz, 2009.

C. The Status of Cultural Property

The protection of cultural property and the growing prominence of the concept of cultural heritage have undeniably raised questions about intellectual property law, particularly copyright law (see the work of S. Joly). Copyright law is intended to protect, among other legal objects, cultural property. Yet this relationship is not straightforward. Copyright was conceived as an incentive and a means of supporting cultural creation, in that it contributes to the remuneration of creators. However, in its role as a monopoly on exploitation, it is viewed by some—against a backdrop of demands for free access to intellectual works and in the name of the public interest—as an obstacle to the right to culture. The practice of file-sharing on the internet, for example, has brought this tension to a head and sparked reflection on these new points of conflict!

The launch in May 2005 of the Research Master’s program in“Law of Cultural Property” at the Avignon School of Law provided the occasion for a seminar titled“Intellectual Property and Culture.”This seminar was organized by the“Property, Norms, and Contracts”research laboratory, a research team based at the Avignon School of Law. ERCIM was closely involved in the event, with contributions from Jean-Michel Bruguière, Nathalie Mallet-Poujol, and Michel Vivant. The proceedings of the seminar, titled “Copyright and Culture, ” were published byDallozen in 2007 as part of the series “Themes and Commentaries: Intellectual Property from a Different Perspective.”

Furthermore, this collaboration between the two teams continued quite naturally, notably with the publication of a special issue of the *Revue Légicom*, No. 36,2006/2, on “Cultural Property,”to which members of ERCIM and the“Property, Standards, and Contracts”laboratory,among others,contributed.

The “legal landscape” of communications law is being profoundly transformed by the rise of social media and the Internet. If there is one place (albeit a virtual one) where traditional paradigms are being upended, it is cyberspace.

There is no shortage of issues challenging copyright law in light of the growing prevalence of “open-source software,” the rise of electronic publishing, and the emergence of new digital creations. Trademark law faces similar challenges in its interaction with domain name practices, both nationally and internationally.

But the upheaval extends beyond intellectual property law. Thus, distribution law must now be reimagined in terms of “cyber-distribution” (see the work of S. Alma-Delettre), while pressing issues of a different nature are emerging, such as the liability of internet service providers, electronic tracking on the web, and the“right to be forgotten” ” (see the work of N. Mallet-Poujol), along with all the risks involved regarding the protection of privacy and civil liberties.

More than ever, this is a reflection on“rupture”that is thus being carried out…

Discussions on Internet law, in addition to numerous individual studies, are primarily conducted through books and regular columns.

For many years, Michel Vivant headed the Lamy Droit de l’Informatique et des Réseaux, which became Lamy Droit du Numérique in 2012 and is now the authoritative work in this field (and to which Nathalie Mallet-Poujol now contributes, covering developmentsin “Data Protection”).

This publication is now affiliated with the journal *Revue Lamy Droit de l’Immatériel* (RLDI), edited by Pierre Sirinelli and Michel Vivant, to which ERCIM members contribute significantly.

Two types of "recurring" tasks are carried out as a team.

• "E-Commerce" Law Compendium

ERCIM has taken on the“E-commerce” Juris-Classeur , which is integrated into the Commercial Juris-Classeur. The scope of the research goes far beyond mere intellectual property issues to encompass the entire phenomenon of this digital commerce. As a result, issues such as “Cyberdistribution” (S. Alma-Delettre, 2007); “E-commerce and the Consumer” (J.-M. Bruguière), “E-commerce and Online Advertising ” (S. Joly), “E-commerce and Personal Data Protection” (N. Mallet-Poujol), “Domain Name Allocation and Disputes” (E. Tardieu-Guigues, 2007), and “Virtual Marketplaces” (A. Robin and M. Vivant, 2007)

• "Internet Law" Column in the JCP, E Edition

In addition, the teamas a whole has taken on the “Internet Law” column in the corporate edition of the JCP: it features both experienced researchers and early-career researchers (ATERs).

How can we protect and promote them?

In this regard, how can we reconcile the respective interests of researchers and educational and research institutions, as well as those of citizens who legitimately aspire, if not to access research, then at least to benefit from its results?

When it comes to valuing public research, how can we strike a balance between public and private interests?

It is these questions—which are fundamental to a knowledge-based society—that three researchers explored in depth in their collaborative studies:

• the Innovation and Research Act (A),
• laboratory notebooks (B)
• and the legal protection of biodiversity (C)
• and the law governing scientific data through the CommonData research program (D).

 A. Ten Years of Implementation of the Innovation and Research Act

On March 19 and 20, 2009, the former ERCIM organized a symposium in Montpellier entitled: “Ten Years of Implementation of the Law on Innovation and Research (1999–2009): Assessment and Outlook.” There were two reasons for holding this event: innovation and commercialization are at the heart of debates on the organization of research, and the Innovation and Research Act of July 12, 1999—known as the “Allègre Act” (LIR)—had entered its tenth year. It was therefore both useful and interesting to take stock of the results of implementing this unique framework.

Although this program was one of the flagship initiatives of the proactive research and development policy implemented since the mid-1990s, its adoption received little media attention and went relatively unnoticed. The overall objective of this policy was to develop and foster collaboration between public research agencies and the business community. It aimed to promote the transfer of technology from public research to the private sector, while also commercializing the results of public research.

When analyzed provision by provision, the law proved, during the symposium, to have had mixed results. Nevertheless, the legislation inherently constituted a “soft revolution”: the concepts it introduced and employs—academic capitalism, university entrepreneurship, and research commercialization—have now entered common parlance, even though they were still unknown in France in the 1990s (the Bayh-Dole Act, adopted in the United States, dates back to 1980) and are now at the heart of innovation policy.

Twenty-eight participants thus took the floor over the course of these two days. The speakers were selected with the aim of bringing together—in a deliberately inclusive manner—all stakeholders who have been or are currently involved in the design of the commercialization policy, its implementation, or the discussion surrounding issues related to the commercialization of public research results. The various roundtables and panel discussions thus brought together academics (lawyers and economists) specializing in intellectual property, public law, or corporate law, as well as practitioners: a Maître des Requêtes at the Council of State, the General Rapporteur of the Ethics Commission, and industrial property attorneys well-versed in the negotiation of partnership agreements.

Alongside legal experts, political figures also participated (members of parliament, staff from technology transfer offices, incubator managers, the INPI, local elected officials, and government representatives). Finally, the discussions would not have been complete without hearing from researchers who have embarked on the LIR journey by commercializing their research findings in the private sector, particularly through the creation of new businesses.

The proceedings of the conference, titled“Innovation and Research in France,”were published by Larcier in 2010.

B. The Lab Notebook

On December 3, 2010, the former ERCIM, in collaboration with the École Polytechnique Féminine (EPF), organized a seminar at the Montpellier School of Law on “The Laboratory Notebook: Practices and Challenges.” In addition to academics, speakers included university technology transfer officers, a lawyer from the CURIE Network, a pharmaceutical laboratory manager, an industrial property attorney, a sales director, and the president of the association of employee inventors. They discussed the recording of research results (institutional framework, technology transfer services, qualitative assessment, and electronic lab notebooks) and their attribution (contract research, proof of prior art, and patent rights).

• Reference:A. Robin, “The Laboratory Notebook: A Key Piece of Evidence in Research Contracts,” Propr. ind., No. 11 , Oct. 2011, Study 16.

C. Biodiversity and the Law

On May 24, 2012, the former ERCIM organized a symposium at the Montpellier School of Law on “Biodiversity Protection and the Law, ”the legal session (S 26) of^{the 13th Congress}of the International Society of Ethnobiology.

As we mark“Rio+20”—the 20th anniversary of the Convention on Biological Diversity (CBD) —signed in Rio de Janeiro on June 5, 1992, under the auspices of the UN—this event provided an opportunity for important presentations on the protection of genetic resources and associated traditional knowledge, delivered not only by professors and researchers in law and economics but also by practitioners, including judges, corporate lawyers, and industry representatives. Issues discussed included the legal status of genetic resources, the protection of indigenous traditional knowledge, scientific collections, and databases, as well as intellectual property in research and development (see the works of C. Le Gal and V. Rage-Andrieu).

Central to the discussion was the Access and Benefit-Sharing (ABS) mechanism—the fair and equitable sharing of benefits arising from the utilization of genetic resources, which is the third objective of the CBD—the details of which were specified by the 2010 Nagoya Protocol.

The discussions highlighted the need to clarify and harmonize a number of concepts and procedures at the international level in order to provide certainty for the various stakeholders in biodiversity: governments, indigenous and local communities, researchers, and industry.

Only under this condition can research and development activities flourish—within the framework of intellectual property law—to make this new“green gold”a genuine source of revenue for both its suppliers and its users.

D. The CommonData Research Program

Since 2016, the former Ercim has been leading a research project on scientific data, titled CommonData (“Research Data, the Scientific Commons”), under the direction of A. Robin.

The project aims to understand researchers’ data management practices and to identify policies that can be implemented to reconcile researchers’ mission of disseminating knowledge with their mission of promoting the results of their research.

The development of digital technologies, which is transforming both scientific practice and the economics of scientific publishing, has compelled lawmakers to take action on certain issues. This intervention has once again raised questions about researchers’ practices regarding the publication of their scientific work (open access) and the dissemination of their data (open data).

The CommonData research program (“Research Data: Part of the Scientific Commons?”) is led by MSH Sud, in partnership with Agropolis Foundation, Labex Agro, Labex Numev, Labex CemeB, EPF, INSERM U 1123 ECEVE, the University of Montpellier, and the CNRS.
The goal is to foster a collective discussion among various disciplinary fields within the Montpellier scientific community (and beyond) on the legal and social dimensions of scientific data and on the practices of researchers and institutions (see the work of A. Robin).